II. Motions to Intervene

On August 20, 2002, Brand X Internet LLC (Brand X) filed a motion to intervene as a party in the above-captioned proceeding. Brand X is a local Internet Service Provider (ISP) in southern California that offers internet connections to residential customers, businesses, and non-profit organizations. Brand X states that it has an interest in this proceeding involving alleged unfair business practices by Pacific and its affiliate ASI in the provision of DSL Transport service to ISPs not affiliated with Pacific or ASI. Brand X maintains that these alleged unfair and anti-competitive practices directly impact the provision of competitive internet services offered by Brand X. Brand X does not intend to broaden the issues already raised in the proceeding.

On September 10, 2002, The Utility Reform Network (TURN) and the Utility Consumers' Action Network (UCAN) jointly filed a motion to intervene in this complaint in order to represent consumer and small business interests and to ensure competitive choices in internet service in California. They contend the issues in this complaint directly affect the way end-user customers and small businesses obtain high speed internet services. TURN/UCAN maintain they have expertise with the subject matter of this complaint given UCAN's direct involvement with consumer complaints regarding DSL services and its representation of consumers in a recent complaint against Pacific's billing, customer service, disconnection and marketing practices for DSL service (Case (C.) 02-01-007/Investigation (I.) 02-01-024). TURN describes its expertise from involvement with the Commission's "line sharing" proceedings that involve joint use of Pacific's local exchange lines for voice calls and other broadband services such as DSL.

According to TURN/UCAN, they did not intervene earlier because they saw no need to duplicate the efforts of CISPA. TURN/UCAN now move to intervene because of the motion to withdraw the complaint filed by CISPA and Pacific/ASI on August 12, 2002. TURN/UCAN view the allegations in the case as too important to dismiss without further review and are concerned that the interests of end-user customers and small ISPs be adequately heard. They suggest that the Commission should allow CISPA to withdraw from the case, but keep the proceeding open so individual ISPs can litigate the complaint.

CISPA does not oppose the intervention request by Brand X and takes no position regarding the intervention of TURN/UCAN.

Pacific/ASI oppose the Brand X intervention as untimely since it comes over one year after the complaint was filed.¹ In addition, they contend that Brand X has no standing because it is not a customer of ASI and that Brand X should not be allowed to raise issues, such as pricing, that have already been ruled to be outside the scope of the complaint. Similarly, Pacific/ASI oppose TURN/UCAN's intervention request as untimely and contend that TURN/UCAN have no legitimate interest in the proceeding because they are not customers of ASI, they do not represent ISPs that are customers of ASI, and they have failed to demonstrate that end-user customers of ISPs have requested their assistance. In addition, Pacific/ASI claim that TURN/UCAN have no expertise or familiarity with the issues in this proceeding and they have not specifically described the issues they intend to pursue.

Morgen Van Buren, a DSL customer who earlier intervened in this complaint, files in support of the interventions of TURN/UCAN and Brand X. Van Buren states that DSL is an issue of substantial public interest and importance and that complainant CISPA has alleged serious service quality problems and anti-competitive practices surrounding defendants marketing and installing DSL. Van Buren notes similarities between the intervention requests of Brand X and TURN/UCAN and the intervention of Greenlining Institute (GI) and Latino Issues Forum (LIF) in consolidated complaints C.99-12-029 and C.00-02-027.² In that consolidated complaint, the complainant and defendant had jointly filed a request to dismiss their complaints. In D.01-02-017, the Commission granted intervention to GI and LIF and denied the request to dismiss the complaint despite the agreement of the parties. The Commission found that it was in the public interest to continue to pursue the allegations contained in the complaints, and that GI's and LIF's intervention might advance inquiry and resolution of those allegations.

Discussion

Brand X and TURN/UCAN have shown good cause why their intervention requests should be granted for the purpose of considering their views on the Settlement between CISPA and Pacific/ASI. First, with regard to Brand X, the motion is timely given the recent request to withdraw the complaint and Brand X's fear that its concerns as an ISP and individual member of CISPA may not be covered by the Settlement. Brand X wants to inform the Commission of its opinion of the Settlement between CISPA and Pacific/ASI and it will only be able to do so if its intervention request is granted. Brand X has shown it has an interest in the competitive issues and service quality allegations contained in the complaint given its role as an ISP, former wholesale DSL customer of Pacific/ASI, and a current retail DSL customer of Pacific/ASI.

With regard to TURN/UCAN, its motion is also timely because it comes immediately following the motion by CISPA and Pacific/ASI to withdraw the complaint. Further, TURN/UCAN have an interest in this complaint as representatives of end-users concerned with the competitive provisioning of internet services. TURN/UCAN have provided assistance in numerous proceedings in their capacity as consumer advocates and the Commission does not typically require them to prove that specific end-users have requested representation by TURN or UCAN before it allows their intervention in a proceeding. We disagree that TURN/UCAN did not specify the issues they wish to address. TURN/UCAN have expressed their desire to comment on the Settlement Agreement filed by CISPA and Pacific/ASI and their intervention should be granted so they can do so.

We agree with Mr. Van Buren that D.01-02-017 provides useful guidance in this matter. In that order, the Commission allowed intervention by additional parties when the public interest necessitated further scrutiny of important policy issues underlying the complaint, despite the complainant's and defendant's joint request to withdraw their complaints. In this case, Brand X and TURN/UCAN raise issues related to the Settlement underlying the withdrawal request and the effect of the Settlement on the competitive DSL market. As described more fully below, Brand X and TURN/UCAN allege the Settlement forged by CISPA and Pacific/ASI violates the Commission's rules regarding settlements and it is not in the public interest because it may not prevent further abuses of the kinds alleged in the complaint. The Commission should consider the views of Brand X and TURN/UCAN. The motions to intervene are granted. Brand X and TURN/UCAN's intervention is limited to commenting on the motion for withdrawal and the underlying Settlement Agreement. Should either Brand X or TURN/UCAN desire greater involvement in the proceeding, they will have to file subsequent motions explaining the nature and scope of their intended participation.

¹ Pacific/ASI's response to the Brand X intervention was due on September 4 but not filed until September 10 and is itself untimely. Although Pacific/ASI provide no explanation for their late response, we will still consider the issues they raise in their response because the minor delay in its receipt has not harmed any party.

² C.99-12-029 involved slamming allegations by Pacific against AT&T Communications of California (AT&T). C.00-02-027 involved a cross-complaint of slamming allegations by AT&T against Pacific.